Ed?: the Patriarchal Rhetoric Driving Capital Rape Statutes

St. John's Law Review Volume 78 Number 4 Volume 78, Fall 2004, Number 4 Article 4 Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes Corey Rayburn Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. BETTER DEAD THAN R(AP)ED?: THE PATRIARCHAL RHETORIC DRIVING CAPITAL RAPE STATUTES i COREY RAYBURN "It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harderto be defended by the party accused, tho never so innocent. Sir Matthew Hale, 1676 "Our society has thefeminist movement to thankfor all of these structural reforms. But the most importantchange brought about by the women's movement is abandonmentof the antediluvian notion that rape is 'afate worse than death.' Nothing is worse than death .. 2 Susan Jacoby, 2002 INTRODUCTION Hale's oft-cited words are more famous for their bearing on the procedural aspects of rape law,3 but it is the first part of the quote that relates to this article. While little has changed since Hale's time in how a rape trial proceeds,4 the application of the death penalty to rapists that he 1 Clerk, Hon. Michael J. Melloy, United States Court of Appeals for the Eighth Circuit. J.D., 2002, University of Virginia School of Law; B.A., Political Science, 1999, University of Iowa. I would like to thank Professors Anne Coughlin and Rosa Brooks for the ideas that inspired this work, Andrew Peterson, Carolyn Bannon, and Ojen Sirin for helping me along the way, Professor David Hingstman for teaching me so much, and Betty Yung for supporting me throughout the writing process. 1 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROwN 634 (Philadelphia, Robert H. Small 1847) (1736). 2 Susan Jacoby, Thank Feministsfor Rape Reforms, BALTIMORE SUN, Aug. 13, 2002, at SlIA. 3 Beverly J. Ross, Does Diversity in Legal Scholarship Make a Difference?: A Look at the Law of Rape, 100 DICK. L. REV. 795, 806-07 (1996). 4 See Anne M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1, 12-13 (1998) (explaining that during Hale's time only serious forms of physical violence were regarded as rape). This is not to say that rape trials have not been significantly reformed in the last four hundred years, but that the actual proceedings still involve the same notions of consent and womyn still must prove much more than victims of other crimes. Id. For an account of the reforms implemented by states 1119 1120 ST. JOHN'S LA W RE VIEW [Vol.78:1119 so vehemently supported fell into disfavor during the 1970's in America and abroad. The last time a person in the United States was executed for rape was forty years ago in Mississippi.5 The movement in the United States against the death penalty for rape culminated in 1978 with the Supreme Court's decision in Coker v. Georgia.6 After the Court held that executions for rape were cruel and unusual punishment in violation of the Eighth Amendment of the Constitution,7 there was little left to be debated about the issue. Or so we thought. Efforts to revive the death penalty for the crime of rape in the United States gained a foothold in Louisiana in 1995. On June 17 of that year, Governor Edwin Edwards signed into law provisions that allowed capital punishment for those convicted of raping a child.8 The passage of a child rape death penalty statute in Louisiana set off a series of debates in state legislatures throughout America. 9 Those deliberations coincided with similar reviews of criminal penalties for rape around the world.10 The fervor that has erupted regarding child molestation is not new, but the desire to apply the death penalty to these crimes has gained momentum in recent years. Calls for law and order and the salient belief that child molesters cannot be rehabilitated have made the death penalty an attractive solution to a "tough on crime" public in the United States. 1 That these laws may conflict with the Court's holding in Coker is not generally a consideration for those seeking swift "justice."1 2 Then again, that is not the concern of this article either. While it is certainly important to speculate on what the Supreme Court would decide in a hypothetical case concerning the death penalty as applied to child rape,13 it is also critical to examine the legal effects these over the last thirty years, see David P. Bryden & Sonja Lengnick, Rape in the Criminal Justice System, 87 J. CRIM. L. & CRIMINOLOGY 1194, 1198-1200 (1997). 5 Rape executions in USA, 1800-1964, at http://sun.soci.niu.edu/-critcrim/dp/faq/rapeexec. html (last visited Oct. 16, 2004). 6 433 U.S. 584 (1977). Id.at 592. 8 LA. REv. STAT. ANN. § 14.42(c) (1997); State v. Wilson, 685 So. 2d 1063, 1067 n.5 (La. 1996). 9 See infra notes 162-88 and accompanying text. 10 See infra notes 194-216 and accompanying text. 11See infra notes 162-88 and accompanying text. 12 A notable exception to the absence of any mention of Coker in legislative debates in various states regarding the application of the death penalty for child rape took place in Virginia. By all accounts, the failure to pass a child rape capital punishment statute was due in large part to the belief that such a law would be unconstitutional. See Michael Hardy, Committee Kills Death PenaltyBill, RICHMOND TIMES-DISPATCH, Jan. 29, 1998, at A-8. 13 Evaluating the constitutionality of the Louisiana statute has been the primary focus of legal scholarship on the death penalty for child rape. A series of notes and articles has been 2004] BETTER DEAD THAN R(AP)ED 1121 policies will have on womyn, 14 children, and rapists. 15 Primarily, careful published with the sole focus aimed at resolving the conflict between Coker and the new statutes. From a purely numerical perspective, a slight majority of legal commentators believe the new statutes would be held unconstitutional. See J. Chandler Bailey, Death Is Different, Even on the Bayou: The Disproportionalityof Crime and Punishment in Louisiana's Capital Child Rape Statute, 55 WASH. & LEE L. REV. 1335, 1371-72 (1998); Meryl P. Diamond, Note, Assessing the Constitutionalityof Capital Child Rape Statutes, 73 ST. JOHN'S L. REV. 1159, 1160-61 (1999); Annaliese Flynn Fleming, Comment, Louisiana'sNewest Capital Crime: The Death Penalty for Child Rape, 89 J. CRIM. L. & CRIMINOLOGY 717, 718, 748 (1999); Pamela J. Lormand, ProportionateSentencing for Rape of a Minor: The Death Penalty Dilemma, 73 TUL. L. REV. 981, 1014 (1999); Lisa White Shirley, State v. Wilson: The Louisiana Supreme Court Sanctions the Death Penalty for ChildRape, 72 TUL. L. REV. 1913, 1921-24 (1998); Pallie Zambrano, The Death Penalty is Cruel and Unusual Punishmentfor the Crime of Rape-Even the Rape of a Child, 39 SANTA CLARA L. REV. 1267, 1268 (1998). There is also a sizable minority that believes a child rape statute would survive a constitutional challenge. See J. Richard Broughton, "On Horror's Head Horrors Accumulate": A Reflective Comment on Capital Child Rape Legislation, 39 DUQ. L. REV. 1, 7 (2000); Yale Glazer, Child Rapists Beware! The Death Penalty and Louisiana'sAmended Aggravated Rape Statute, 25 AM. J. CRIM. L. 79, 82 (1997); Elizabeth Gray, Death Penalty and Child Rape: An Eighth Amendment Analysis, 42 ST. LOUIS U. L.J. 1443, 1446 (1998); Bridgette M. Palmer, Note, Death as a ProportionatePenalty for Rape of a Child: ConsideringOne State's Current Law, 15 GA. ST. U. L. REV. 843, 845 (1999); Matthew Silversten, Sentencing Coker v. Georgia to Death: Capital Child Rape Statutes Provide the Supreme Court an Opportunity to Return Meaning to the Eighth Amendment, 37 GONz. L. REV. 121, 123 (2001); Melissa Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes, 45 ARIZ. L. REV. 197 (2003). Professor Michael Mello also offered a wonderful reconstruction of Coker that attempted to account for race and gender, applying some of his conclusions to the Louisiana statute. See Michael Mello, Executing Rapists: A Reluctant Essay on the Ethics of Legal Scholarship,4 WM. & MARY J. WOMEN & L. 129, 177-201 (1997). 14 1 choose to adopt the gender-neutral term "womyn" to refer to the people more commonly called "women." The etymology of "woman" was from the Old English term "wif- man" whereas "man" was "wer-man." Over time, the "wer" was dropped as "man" was recognized as the significant and "normal" sex. Removing "women" and instead using "womyn" is not just a way to break from patriarchal linguistic patterns. It also problematizes social constructions of womyn because language is an important vehicle for deconstructing cultural norms and exposing gender hierarchies. See Onilley McNoan, We like Women, what about Womyn?, IMPRINT ONLINE, Mar. 26, 1999, at http://imprint.uwaterloo.ca/issues/032699/4 Human/features0l.shtml; see also ROSALIE MAGGIO, THE DICTIONARY OF BIAS-FREE USAGE: A GUIDE TO NONDISCRIMINATORY LANGUAGE 285 (1991); Corey Rayburn, Why are YOU taking Gender and the Law?: Deconstructing the Norms that Keep Men out of the Law School's "Pink Ghetto, " 14 HASTINGS WOMEN'S L.J.

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